R v Sanderson – A Miscarriage of Justice?

By D Wark

Rules governing the use of evidence are critical components to ensuring the credibility and fairness of the trial process. In the criminal justice system, evidentiary rules are critical to ensuring that defence counsel can properly defend the accused. This is a fundamental principle of the criminal justice system. The case R v Sanderson highlights why credible forensic evidence and witness testimony are critical to upholding the integrity of the justice system. This case also highlights how unscrupulous tactics by the Crown can create the potential for miscarriages of justice. Robert Sanderson, one of three convicted in a 1996 gangland killing, was granted a new appeal by the Minister of Justice in February 2023.[1] The Minister argued that the weak and dubious nature of the evidence used against him in the initial case likely escalated to a miscarriage of justice. This paper will highlight the dangers of questionable evidence by giving the background on the case, the outcomes of the initial appeal, andhow the findings of that initial appeal are relevant to Robert Sanderson’s new case.

Background

In 1996 three men were found dead in a home in the North End of Winnipeg.[2] Forensic evidence tied two men, Robert Tews (“Tews”) (via fingerprint identification) and Robert Sanderson (“Robert”) (via hair microscopy), to the scene.[3] Oil samples found at the scene tied Robert’s vehicle to the crime scene and a bat with blood of two of the victims was discovered in the car.[4] A third accused, Roger Sanderson (“Roger”), was tied to the crime scene based on the testimony of Brent (“Brent”), the Crown’s key witness who alleged that Roger confessed his involvement in the murders.[5] All three men were convicted at trial

for first-degree murder, and all three subsequently appealed. The three men’s appeals were addressed separately at trial.

Findings from the Initial Appeal

Roger’s Appeal and the Issue of Brent’s Credibility

 The details of Roger’s appeal are pertinent to Robert’s new appeal. Brent testified that he worked as “muscle” for Roger, the latter of whom Brent claimed was vice-president of the Manitoba Warriors.[6] Brent also testified that the night before the murder, he and Roger were at an illegal bar into the late hours of the night where Tews and Robert later arrived brandishing a number of weapons.[7] All three accused left the bar sometime later.[8] The next day, Roger allegedly called Brent and told him to watch the news which at the time was broadcasting about the three murders.[9] Roger also joked to Brent about the murders during the phone call.[10] When they met later in person, Brent claimed that Roger bragged to him about the murders—explaining in great detail which co-accused did what and how the victims died.[11]

Around the time Brent allegedly heard Roger’s confessions, he was facing five separate and serious charges (which eventually grew to six).[12] At trial, Brent admitted he frequently lied in his interviews with police, and his story changed each time he was interviewed.[13] Some of his most damning testimony was only relayed to the Crown and police for the first time the night before he was set to testify at trial; this testimony was not recorded on video.[14] He also admitted to being intoxicated by alcohol and cocaine during the course of the events he was testifying to.[15]

After giving his testimony, the police relocated Brent and his mother to a city of their choosing, providing them with money to assist with their rent.[16] In total, he received $15,000 from police and had five of the six charges against him stayed by the Crown.[17] Brent also admitted that this move allowed him to escape drug-related debts that were hanging over him.[18]

The Court of Appeal found that the trial judge failed to accurately instruct the jury that Brent was an unsavory witness with questionable credibility; Roger was granted a retrial.[19] 

Robert’s Appeal

Robert’s initial appeal was quickly dismissed by the court. However, two issues in his argument are extremely relevant to his current appeal.

First is the corroborating testimony of Taisa Marunchak (“Marunchak”), who Robert alleged was not credible. Marunchak was an underage sex worker who was “sold” to Robert. She testified that the three accused returned on the night of the murder, and Tews demanded her shoes as his were covered in blood.[20] Despite her young age and potential interest in seeing Robert convicted, the Court of Appeal found her to be credible.[21] The court provided the caveat that, should the court be in error of Marunchak’s credibility, there still existed corroborating evidence to her testimony—with the example being used was the previously mentioned shoes.[22] However, in a vacuum, this would only tie Tews to the murder. Tews’s bloody shoes do not implicate Robert. The only corroborating evidence against Robert was a hair sample of Robert’s found at the feet of one of the victims. This hair sample was initially attributed to Roger but was proven otherwise in 2004.[23] To make matters even more complicated, Marunchak would later end up having a romantic relationship with Brent.[24] This relationship may create further uncertainty in the credibility of her testimony regarding Robert’s new appeal.

The second point raised was that the trial judge failed to accurately warn the jury they must divorce the testimony of Brent against Roger when judging Robert’s guilt. While the jury is a “black box,” meaning we cannot discern their reasoning in finding guilt, it is unclear if the jury was able to completely mentally “throw away” Brent’s testimony when judging the merit of the case against Robert since the same jury deliberated in Roger’s and Tews’s trials too. Nevertheless, the Court of Appeal found that the trial judge did not err in having all men tried together in front of a single jury.[25]

Thoughts on Robert’s New Appeal

Robert’s new appeal has yet to reach a conclusion. However, notwithstanding any new evidence, there is a legitimate chance that the appeal will be allowed. With a lack of forensic evidence, the appellate court will have to rely on the testimony of two witnesses with major credibility issues. Brent’s testimony is likely inadmissible hearsay evidence. While Roger’s alleged confession to Brent may be useful against Robert,  the confession cannot be used against Robert. Courts do not generally accept the testimony of a witness who is conveying statements made outside of court on the activities of a third party. This principle is used to protect the accused from dishonest testimony made by bad actors. Marunchak’s emergent relationship with Brent raises uncertainty about her credibility too. Thus, the evidence suggests that a case against Robert Sanderson lacks legs to stand on, and a finding of guilt beyond a reasonable doubt seems extremely tenuous.

Conclusion

What is most clear from this case is the importance of evidentiary rules and credible evidence. The Crown should have held themselves to a higher standard to maintain the integrity of their case. Unfortunately, the lead Crown against Sanderson was George Dangerfield, a man who has the infamous reputation of securing the highest number of wrongful convictions in Canadian history.[26] This case contained many of the hallmarks of Dangerfield’s controversial style.[27] It is critical to ensure that forensic evidence is critically examined and any weaknesses are understood by lawyers, judges, and juries. Hair microscopy has only ever been able to narrow down potential suspects, but this was not how it was often presented.[28]  

Additionally, witnesses and their respective testimonies must be vetted carefully, and their credibility, or lack thereof, must be clearly communicated to triers of fact. Ultimately, it is impossible to say how the appellate court will judge the new case against Robert. Nevertheless, any opportunity to address a miscarriage of justice should be viewed by all as critical for maintaining the integrity of the justice system.

[1] Department of Justice Canada, “Minister of Justice orders new appeal in Manitoba case following conviction review for Robert Sanderson” (2023).

[2] R v Sanderson, 1999 CanLII 18744 at para 1 (MBCA) [Sanderson].

[3] Ibid at para 5.

[4] Ibid.

[5] Ibid at para 6.

[6] Ibid at para 12.

[7] Ibid at para 14.

[8] Ibid at para 19.

[9] Ibid.

[10] Ibid.

[11] Ibid at paras 20-21

[12] Ibid at para 25.

[13] Ibid at paras 22-27.

[14] Ibid at para 24.

[15] Ibid at paras 14-15.

[16] Ibid at para 26.

[17] Katrina Clarke, “The long, hard road to exoneration”, Winnipeg Free Press (4 November 2023), online: <www.winnipegfreepress.com> [perma.cc/HNA7-R8EA].

[18] Sanderson, supra note 2 at para 26.

[19] Ibid at para 54.

[20] Ibid at para 98.

[21] Ibid.

[22] Ibid.

[23] Sanderson, supra note 2.

[24] Ibid.

[25] Ibid at para 99.

[26] Supra note 17.

[27] Ibid.

[28] Bruce Macfarlane, “Wrongful convictions: determining culpability when the sand keeps shifting” (2014) 47:2 UBC L Rev (QL).